60 Neb. 480 | Neb. | 1900
Exceptions are taken to a certain instruction given by the court on its own motion, and to its refusal to give others requested by the defendant on the trial of the action. We find no substantial basis for the exceptions thus taken. The instruction given and excepted to, fairly states the law and was applicable, under the evidence. It is as follows:
“If you believe from the evidence in this case that an act of sexual intercourse did take place between the defendant and the prosecuting witness, as averred in the information, then the question as to whether or not she did voluntarily consent to such act, is a question of fact for you to determine from the evidence in this case. The defendant insists that she did voluntarily consent thereto, and that he used no force or coercion of any kind to compel such consent, but that she submitted to his desires upon his request alone; while the prosecution insists
We do not agree with contention of counsel that the instruction fails to say that the act must be against the will of the prosecutrix.
The instructious asked and refused were substantially covered by other instructions given, and the giving thereof would have subserved no beneficial purpose. The last instruction requested and refused was not applicable under the evidence, even if it were a correct expression of flie law, which is doubted by the writer. We think the instructions as a whole fairly stated the law, and were eminently fair to the defendant. He has, in our opinion, no cause for complaint on account of the giving or refusal to give the instructions of which complaint is made, and his objections in respect to the same are overruled.
The objection that the verdict and judgment are not sustained by sufficient evidence presents a more serious question. The defendant was found guilty and sentenced to imprisonment for the crime of rape. On the trial of the case, the defense was conducted on the theory that sexual intercourse with the prosecutrix, which was admitted, was had voluntarily and with her consent. The theory of the prosecution was that the act was accom
Opposed to this view of the case was the evidence of the defendant, to the effect that the act was voluntary on the part of the prosecutrix; also, her action and conduct after the commission of the alleged offense, which seem almost inexplicable; the evidence of other witnesses as to undue familiarity of the prosecutrix with other men; the testimony of one that she had admitted to him that she had had intercourse with another man; and that of one other witness that he had had intercourse with the prosecutrix. This evidence was denied in rebuttal, and the state offered evidence tending to impeach ■ some of defendant’s witnesses as to their reputation for truth and veracity.
The evidence was conflicting and of a most contradictory character. Much of it was obviously false and willfully so. The jury heard all of the testimony. They had an opportunity of seeing the different witnesses, hearing them testify, observing their demeanor on the witness stand, and, from all the circumstances connected with the trial, were enabled to attach such weight to the testimony of each as it seemed fairly entitled to. They were the triers of fact, and their judgment should not be disturbed if supported by sufficient competent evidence. The case was submitted to them fairly and im
It is contended by the defense that, because of the conduct of the prosecutrix after the alleged offense, the delay in making disclosure, and other circumstances in relation thereto, the evidence is insufficient to sustain a verdict and judgment for the crime of rape. We are cited to the cases of Mathews v. State, 19 Nebr., 330, and Richards v. State, 36 Nebr., 17, in support of counsel’s contention. In the Mathews Gase it was held, first, that where the offense is explicitly denied by the defendant, there must be corroborating testimony; and, second, that' the evidence in that case, admitting all that was said by the prosecutrix to be true, was not sufficient to establish the crime charged. The testimony in that case applied solely to the resistance offered, and there was no claim that the prosecutrix was overcome by threats, or that she submitted through fear of death or great bodily harm. The case at bar is distinguishable from the one referred to, in that corroborating evidence is not wanting, and that the failure to'make greater resistance is claimed to have been prevented by reason of threats made by the defendant; that the fear of the prosecutrix of death or great bodily harm by reason of such threats, not only precluded more active resistance, but forced unwilling submission on her part.
In the Richards Gase no complaint was made for nearly seven months after the alleged offense, and not until concealment was no longer possible because of the pregnancy of the prosecutrix. It is there held that the charge, under such circumstances, could not be sustained unless accompanied by strong corroborating proof of the commission of the crime. The case at bar does not come within the rule announced in that case.
It is to be conceded that it appears passing strange and almost unaccountable that the prosecutrix should remain at defendant’s house for the time she did. She was, how
While there is some evidence of friendliness and familiarity with the defendant after the transaction, this is strenuously denied by the prosecutrix, and her testimony in this regard is- not without color of support. It is shown on rebuttal, that one of the defendant’s witnesses had said, “I mistrusted there was something wrong and I made Lloyd [the defendant] tell me all about it after we got to the timber, and he told me what he had done.”
While there are circumstances connected with the case, as disclosed by the record, which render it difficult to ascertain the truth as to the charge laid against the defendant, we are of the opinion, from an examination of the entire record, that there is sufficient competent evidence to support the verdict of the jury, and establish the commission of the offense charged.
The next complaint is that the court erred in the admission of certain of the testimony of a Mrs. Doty, who testified on behalf of the state, the objectionable testimony relating to certain statements with reference to the alleged offense made by the prosecutrix in a conversation with the witness. The record discloses that these statements were made in a conversation participated in
We find no error in the case warranting a invernal of the judgment of the trial court, and the same is accordingly
Affirmed.